Sharia and Diversity: Why Some Americans are Missing the Point
The lens of state power is not the only way to see law. Jewish halakha is one example. The scholar-created doctrines of Islamic law are another. Both are complete systems of law that do not need state power in order to govern individual behavior. This is why, when American Muslims say that they live according to sharia, this does not mean that they want government enactment of Islamic law. Their request that American law recognize their choice of religious rules in their lives is not a demand that American law legislate Islamic law for everyone. To think so is to fundamentally misunderstand what Islamic law is, the fact that it differentiates between God’s Law and the human interpretations thereof, and how Islamic law operates in practice. Much of the confusion in the United States regarding sharia would be untangled if Americans could appreciate these realities, however unfamiliar.
Sharia is, for Muslims, Divine Law—the Law of God. But it takes human scholarly study of scripture to articulate and elaborate that Divine Law in the form of legal rules. Those legal rules are called “fiqh,” crafted by religious legal scholars with a self-conscious awareness of their own human fallibility. As a result, there are many fiqh schools of law. According to Islamic legal theory, no fiqh rule can demand obedience because every such rule is the product of human (and thus fallible) interpretation. This pluralism allows the divine sharia “recipe” to be tangible enough for everyday Muslim use, yet flexible enough to accommodate personal choice.
Pluralism in fiqh (human articulation of Divine Law) illustrates the dynamic interactive engagement that sharia (Divine Law) has had with many different human environments. In other words, Muslim religious scholars have always treated sharia (Divine Law) as a recipe that is meant to be made (with all the natural diversity that results from that process), not one frozen in pristine condition decorating a kitchen bookshelf.
The enactment of so-called “sharia laws” in Muslim-majority countries is a modern mutation. Pre-modern Muslim governments formally recognized fiqh, but not by legislating it as the uniform law of the land. Instead, there was a separation of legal authority between the realms of fiqh (human articulation of Divine Law) and ruler-made laws for public order (siyasa). This separation enabled pre-modern Muslim legal systems to preserve the pluralism of fiqh and the principle of individual personal choice between fiqh schools, while still enabling Muslim rulers to make laws in order to serve the public good (siyasa). In stark contrast to this history, most Muslim-majority countries today have a very different constitutional framework, inherited or borrowed from the European nation-state model in which all law is controlled by the government. Modern Muslim legal systems no longer formally separate the realms of fiqh (human articulation of Divine Law) and state-made law (siyasa). Instead, the only formally recognized law in most of these countries is the law made by the government. Thus, the phenomenon of “sharia legislation” exists not because sharia (Divine Law) demands it, but rather, because of a complicated series of political events in these countries.
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